National Indian Law Library Bulletin (10/24/2016)


The National Indian Law Library added new content to the Indian Law Bulletins on 10/24/16.

U.S. Supreme Court Bulletin
The Tribal Supreme Court Update Memoranda of September 21, 2016 is available
at the Tribal Supreme Court Project website.

Petition for Certiorari was filed in Patchak v. Jewell (Separation of Powers; Due Process) and R.P. v. LA County Department of Children and Family Services (Indian Child Welfare Act).

U.S. Courts of Appeals Bulletin
Williams v. Poarch Band of Creek Indians (Age Discrimination)

News Bulletin
In the Culture & Tradition section, we feature articles about Chief Wahoo, the Cleveland Indians baseball team mascot.

U.S. Regulatory Bulletin
We feature a notice of a model Indian juvenile code from the Bureau of Indian Affairs.

U.S. Legislation Bulletin
One bill became law:
S.246: Alyce Spotted Bear and Walter Soboleff Commission on Native Children Act.

Law Review & Bar Journal Bulletin
Habitat protection and Native American treaty fishing in the Northwest.
Using vector space models to understand the circulation of habeas corpus in Hawai’i, 1852–92.
Native American use of eagle feathers under the Religious Freedom Restoration Act.

Tenth Circuit Briefs in Navajo Nation Challenge to State Court Jurisdiction over Personal Injury Suits at Tribal Casino

Here are the briefs in Navajo Nation v. Dalley:

Navajo Opening Brief

Pueblo of Santa Ana Amicus Brief

Lower court materials here.

Eleventh Circuit Holds ADEA Does Not Abrogate Tribal Immunity

Here is the opinion in Williams v. Poarch Band of Creek Indians.


Williams Brief

Poarch Band Brief


Lower court materials here.

National Indian Law Library Bulletin (10/17/2016)


The National Indian Law Library added new content to the Indian Law Bulletins on 10/17/16.

U.S. Supreme Court Bulletin
Petition for Certiorari was filed in Wolfchild v. Redwood County (Common law claims of trespass and ejectment)

News Bulletin
In the Sacred Places section, we feature a couple of articles on the possible Bears Ears National Monument.

State Courts Bulletin
United Auburn Indian Community of the Auburn Rancheria v. Edmund G. Brown, Jr. (Indian Child Welfare Act – Transfer to Tribal Court)

U.S. Federal Trial Courts Bulletin
Sanchez v. Cegavske (Voting Rights)
In re: Greektown Holdings, LLC v. Papas (Bankruptcy; Tribal Sovereign Immunity)

U.S. Regulatory Bulletin
We feature the Department of Interior’s final rule on procedures for reestablishing a formal government-to-government relationship with the Native Hawaiian community.

Fletcher on Current Tribal Immunity Issues (


Law360, New York (October 14, 2016, 1:32 PM EDT) — Two years ago, in Michigan v. Bay Mills Indian Community, the U.S. Supreme Court roundly affirmed the doctrine of tribal sovereign immunity, but did so grudgingly. The court warned against tribes abusing their sovereign status, especially in commercial ventures. The lower courts now are addressing tribal immunity in contexts as diverse as tribal sovereign lending and eminent domain exercised by utility companies. Pending before the Tenth Circuit is Public Service Company of New Mexico v. Barboan, where a utility is attempting to exercise the power of eminent domain over lands owned by an Indian tribe. And, this Term, the Supreme Court in Lewis v. Clarke will determine the scope of immunity for tribal employees. The outcomes in these cases, potentially circumventing tribal immunity, may expose tribal governments to extensive liability, reduced commercial opportunities, and worsened environments.

The federal government has authority to abrogate tribal immunity but the judiciary imposes a clear statement rule on statutes purported to waive immunity. As the Supreme Court stated in Bay Mills, Congressional intent to abrogate tribal immunity must be unequivocal. In Barboan, the utility is relying on 25 U.S.C. § 357 for statutory authority to condemn Indian lands. The statute does authorize the condemnation of Indian lands, with compensation to “allottee[s].” The Tenth Circuit may decide whether that statute is a clear statement of intent to authorize the condemnation of lands owned by allottees that are Indian tribes otherwise cloaked with immunity. If the court holds § 357 abrogates tribal immunity, then tribal efforts to stop or slow pipeline projects like the Dakota Access Pipeline could be compromised. Lower courts likely will conceive of this case as within the call of the question in Bay Mills and uphold the tribal defense here. But as always, the Supreme Court looms.

That the Supreme Court is very interested in the contours of tribal immunity is confirmed by the consistency with which the court has granted certiorari in those cases. Coming a mere two years after Bay Mills, the Court will hear another immunity matter arising from tribal commercial activities. In Lewis, the Court will decide whether tort and contract claimants can access tribal assets under a theory that tribal employees could be liable in tort if sued in their individual capacities, placing tribes in an unenviable position requiring them to indemnify money damage claims against employees.

Because Indian tribes usually have no tax base, the federal government long has encouraged tribes to utilize their sovereign status in commercial ventures to generate government revenue. In line with federal Indian policy, tribes have established gaming operations, asserted control over reservation natural resources, and established online commercial enterprises. Meanwhile, tribes established justice systems to address tort and contract claims arising from tribal enterprise. Tribal statutes established limited waivers of tribal immunity tailored to tribal courts analogous to the Federal Tort Claims Act and the federal Contract Disputes Act. Tribes have settled or litigated untold thousands of claims under these tribal laws since the 1990s.

Still, tribes find themselves hailed into state and federal courts to defend tort and contract claims for money damages. Nearly all of these claims are dismissed for lack of jurisdiction, either because of state or federal court subject matter jurisdiction or sovereign immunity. The tougher cases are those that arise off-reservation. The Supreme Court has held more than once that tribes retain immunity in federal and state courts even when engaged in off-reservation commercial ventures. Tort victims complain that tribal limitations periods are too short, that tribal damages caps are too low, and that tribal courts are unfamiliar and perhaps even biased forums. Worse, some consumers of tribal sovereign lending products allege that tribal dispute resolution forums are wholly inadequate or even shams.

In recent years, tort victims cleverly have sued tribal employees in their individual capacities in state or federal courts, seeking to avoid tribal immunity. Some courts rejected this theory, but others held that tribal emergency medical technicians and casino managers may be sued for money damages in their individual capacities. Perhaps it is only a matter of time before tribal sovereign lending employees are sued in their individual capacities. Individuals are not sovereigns, and are not immune from suit. However, sovereigns cannot act without individuals. Normally, when a government employee is on the clock, they are government officials cloaked with immunity from money damages, not individuals. Everyone knows that a pragmatic tribal government will be forced to indemnify their employees, opening up the tribal fisc to potentially expansive liability.

Decisions against tribal immunity in the context of Indian lands and in the context of tribal employees could expose Indian tribes to land dispossession and monetary liability far beyond what tribes have come to expect in recent decades. With an eight-judge Court, getting to five votes is tricky. However, it is very possible that progressive judges skeptical of governmental immunity might vote against tribal interests alongside conservative justices skeptical of tribal sovereignty. Tribal interests could very well face a perfect storm aligned against them.

—By Matthew L.M. Fletcher, Michigan State University College of Law

Matthew L.M. Fletcher is a professor of law at Michigan State University College of Law. Fletcher is the primary editor and author of the leading law blog on American Indian law and policy, Turtle Talk.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Indian Law Resource Center Accepting Applications for 2017 Fellowships

From the announcement:

The Indian Law Resource Center is a non-profit legal advocacy organization that provides legal advice, assistance, and representation to Indian tribes and indigenous communities throughout the Americas. We are also committed to developing new attorneys in the fields of Indian law and international human rights law.

We offer fellowship and clerkship opportunities in both our Helena, Montana and Washington, D.C. offices. These fellowship and clerkship opportunities require a minimum eight week commitment and entail legal research and writing on major Indian rights issues related to current projects of the Indian Law Resource Center. The Lewis and Sidley Fellowships both offer a stipend of $3,000 for the term of the Fellowship. Applicants are welcome to supplement this stipend with additional financial support through their law school’s public interest programs or through other public interest scholarships.

Complete details available here: lewis-and-sidley-fellowships-2017

National Indian Law Library Bulletin (10/10/2016)


The National Indian Law Library added new content to the Indian Law Bulletins on 10/10/16.

U.S. Supreme Court Bulletin
Petition for Certiorari was granted in Lee v. Tam  (Trademarks)
Petition for certiorari was denied in these four cases:
Flute v. U.S. (Fiduciary Duty)
Jones v. Norton (Bad man clause)
Kelsey v. Bailey (Tribal Jurisdiction; Indian Civil Rights Act)
Pro-Football v. Blackhorse, et al. (Trademarks)

U.S. Courts of Appeals Bulletin
Standing Rock Sioux Tribe v. United States Army Corps of Engineers

News Bulletin
In the Land & Water section, we feature a story about a law passed by Congress to restore land to several tribes in Nevada.

U.S. Federal Trial Courts Bulletin
A.D. v. Washburn (Indian Child Welfare Act)
Sisseton-Washington Oyate of the Lake Traverse Reservation v. U.S. Corps of Engineers (Sacred Places; National Historic Preservation Act; Clean Water Act)

Law Review & Bar Journal Bulletin
These articles were added:
Who’s in and who’s out: Congressional power over individuals under the Indian Commerce Clause.
Indigenous identity, cultural harm, and the politics of cultural production: a commentary on Riley and Carpenter’s “Owning Red.”
Making resources, making management.

U.S. Regulatory Bulletin
The Environmental Protection Agency has issued proposed rules on federal baseline water quality standards for Indian reservations.

U.S. Legislation Bulletin
One bill became law:
H.R.2733: Nevada Native Nations Land Act.
One bill was added:
H.R.3682: Reducing Employer Burdens, Unleashing Innovation, and Labor Development Act of 2015.

D.C. Circuit Court Dissolves Emergency Injunction Pending Appeal on Dakota Access Pipeline

As has been reported elsewhere, the D.C. Circuit denied Standing Rock’s injunction of building the pipeline pending appeal. Order here. Previous coverage here.

The court wrote:

Although the Tribe has not met the narrow and stringent standard governing this extraordinary form of relief, we recognize Section 106 of the National Historic Preservation Act was intended to mediate precisely the disparate perspectives involved in a case such as this one. Its consultative processdesigned to be inclusive and facilitate consensusensures competing interests are appropriately considered and adequately addressed. But ours is not the final word. A necessary easement still awaits government approvala decision Corps’ counsel predicts is likely weeks away; meanwhile, Intervenor DAPL has rights of access to the limited portion of pipeline corridor not yet clearedwhere the Tribe alleges additional historic sites are at risk. We can only hope the spirit of Section 106 may yet prevail.

Joint Statement from DOJ, DOI, and Army Corps:

MONDAY, OCTOBER 10, 2016 (202) 514-2007
WWW.JUSTICE.GOV TTY (866) 544-5309


WASHINGTON – The Department of Justice, the Department of the Army and the Department of the Interior today issued the following statement regarding the D.C. Circuit Court of Appeals’ decision in Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers:

“We appreciate the D.C. Circuit’s opinion.

“We continue to respect the right to peaceful protest and expect people to obey the law.

“The Army continues to review issues raised by the Standing Rock Sioux Tribe and other Tribal nations and their members and hopes to conclude its ongoing review soon. In the interim, the Army will not authorize constructing the Dakota Access Pipeline on Corps land bordering or under Lake Oahe. We repeat our request that the pipeline company voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.

“We also look forward to a serious discussion during a series of consultations, starting with a listening session in Phoenix on Tuesday, on whether there should be nationwide reform on the Tribal consultation process for these types of infrastructure projects.”

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The dear Tribal Leader letter and the consultation dates are here.